COLLABORATIVE LAW MEDIATION AGREEMENT the Parties to This Agreement Have Chosen to Enter Into This Agreement to Use the Principl

COLLABORATIVE LAW MEDIATION AGREEMENT

The Parties to this agreement have chosen to enter into this agreement to use the principles of the collaborative law process to settle the issues and disputes arising from the care of ______(herein the Subject Adult) within an ongoing mediation process governed by RCW 7.07 and RCW 11.96A.300 and protected by ER 408.

1. PURPOSE

The primary goal of both mediation and the collaborative law process is to settle outstanding issues in a non-adversarial manner. The Parties aim to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation. The Parties have retained collaborative lawyers to assist them in reaching this goal and to conduct their negotiations with the context of an ongoing mediation overseen by a collaboratively trained mediator.

2. VOLUNTARY NATURE

All Parties recognize that mediation is a voluntary settlement process and that the mediator has no authority to impose a settlement on the Parties.

3. COMMUNICATION

The Parties intend to communicate effectively with each other to efficiently and economically settle the dissolution of their relationship. Written and verbal communications will be respectful and constructive and will make no accusations or claims not based in fact.

It is agreed that communication during settlement meetings will focus on the issues and dispute raised in the care of Subject Adult and the constructive resolution of those issues. It is recognized that they will be direct communication between counsel without direct participation with the Parties.

The Parties are encouraged to discuss and explore the interests they have in achieving a mutually agreeable settlement, and each is encouraged to speak freely and express his or her needs, desires, and options without criticism or judgment by the other.

Although the Parties should be informed by their lawyers about, and may discuss with each other, the litigation alternatives and the outcomes they might attain, neither Party nor their lawyers will use threats to withdraw from the process or to go to court as a means of achieving a desired outcome or forcing a settlement.

1 4. CONFIDENTIALITY

The Parties and their legal representatives understand and agree that all information provided to other Parties during the pendency of this agreement is considered to be a submission during a session of the ongoing mediation is privileged and neither subject to discovery nor admissible as evidence in a proceeding unless waived or precluded by RCW 7.07.040. Parties further acknowledge that all communications between partied during the pendency of this agreement are offers of settlement therefore inadmissible under ER 408 and preserve all other statutory or case law privilege that would otherwise be applicable.

If subsequent litigation occurs, the Parties mutually agree that:

A. The Parties will neither subpoena nor require the mediator to testify or produce records, notes, or work product in any future proceedings.

B. Neither Party will introduce as evidence in court information disclosed during the collaborative law process for the purpose of reaching a settlement, except:

1. Documents otherwise compellable by law including any sworn statement as to financial status made by the Parties, or

2. A report prepared by a Collaborative Neutral Expert, which may be used only in the event that the Parties jointly agree in writing as set out in paragraph 7;

C. Neither Party will introduce as evidence in court information disclosed during the collaborative law process with respect to either Parties’ behavior or legal position with respect to settlement;

D. Neither Party will ask or subpoena to court either lawyer or any of the Collaborative Professionals or Collaborative Neutral Experts to testify in any court proceedings;

E. Neither Party will require the production at any court proceeding of any notes, records, or documents in the lawyer’s possession or in the possession of one of the Collaborative Professionals or of the Collaborative Neutral Experts; and the Parties agree that these guidelines with respect to confidentiality apply to any subsequent litigation, arbitration, or other process for dispute resolution. The confidentiality clause does not apply in the event that a Party or Collaborative Professional is obligated by law to report to Child Protective Services (CPS) information arising out of the collaborative process, which gives the party or Collaborative Professional reasonable grounds to believe that a child may be in need of protection.

F. Individual Parties may engage in private caucuses with the mediator. The

2 content of these caucuses will remain private; however, if in the course of that caucus information is revealed should be disclosed under Section 5, the mediator may instruct the party to reveal that information to the other parties or reveal it themselves.

5. AFFIRMATIVE DUTY TO DISCLOSE & PRESERVATION OF PRIVILEGE

The Parties, assisted by their lawyers, will voluntarily furnish all information and produce all documents that are important to resolving the issues surrounding the care of the Subject Adult. In determining what needs to be disclosed, the Parties will not be restricted by what might be legally relevant or privileged and produce all documents regardless of the admissibility as evidence.

All Parties agree that any documents shared during the pendency of this agreement that would otherwise be privileged documents are being shared solely for the purpose of settlement under ER 408 and that their disclosure is not a waiver of privilege.

All decisions made and any settlement agreement reached will be based on the understanding that the Parties and lawyers have furnished any important information and produced any important documents.

No formal discovery procedures will be used unless specifically agreed to in advance by the Parties.

No Party will take advantages of inconsistencies, mistakes, or miscalculations of the other, but will disclose them and seek to have the corrected.

6. NEGOTIATION IN GOOD FAITH

A. We agree to proceed in Good Faith. “Good Faith” means to abide by the rules of common courtesy, to keep an open mind, be willing to explore options without holding a fixed position, and to share all pertinent information, whether financial or emotional.

B. We agree to voice any concerns or questions that may arise during the process about the overall process, direction, or any interactions between the Parties and any Collaborative team members.

C. We agree to convert complaints into neutral requests to the best of our ability and to refrain from blaming and negative assumptions based on the past behavior of the other party.

D. We agree to work productively in the “here and now” keeping the future in mind. E. We agree not to use the collaborative process or procedure to gain unfair

3 advantage.

7. PARTICIPATION WITH INTEGRITY

A. We agree not to transfer, encumber, conceal, or in any way dispose of any property, real or personal of the Subject Adult, whether probate or nonprobate, without written consent of the other Parties except for the timely payment of necessary expenses including to but not limited to providng current housing, upkeep, and medical expenses for the Subject Adult. Parties agree that they shall waive any claim that they may have against the Personal Representative for failure to liquidate or manage assets by their refusal to consent to such action if requested.

B. We agree to maintain the confidentiality of all content (written or oral) of the sessions and that under no circumstances will any of this content be used in any future adversarial process, unless allowed pursuant to paragraph 15 herein.

C. We agree we will not take advantage of inconsistencies or miscalculations of the other, but will disclose them and seek to have them corrected.

8. CAUTIONS AND LIMITATIONS

In electing the collaborative law process, the Parties understand that there is no guarantee that the process will be successful in resolving their case. They understand that the process cannot eliminate concerns about any disharmony, distrust or irreconcilable differences that have led to the current conflict. While intent on striving to reach a cooperative solution, success will ultimately depend on their commitment to making the process work. The Parties understand that they are still expected to assert their respective needs and interest and that their respective lawyers will help each of them do so.

The Parties further understand that while the collaborative lawyers share a commitment to the process described in this document, each of them has a professional duty to represent his or her own client.

9. LAWYERS FEES AND COSTS

We agree that the collaborative lawyers employed for this process are entitled to payment for their services, and the first task in a collaborative matter is to ensure parity of payment to each of them. We agree to make funds available for this purpose.

10. NEUTRALITY OF MEDIATOR

All Parties acknowledge that the mediator is an independent neutral party. The Parties recognize the mediator shall not give legal advice or counsel concerning

4 any party’s legal rights. Before accepting this appointment, the mediator has conducted the inquiry required by RCW 7.07.080 and disclosed any applicable facts or relationships.

11. MEDIATOR FEES AND COST

All Parties agree, unless agreed otherwise, to equally share in the fees and costs of the mediator.

12. EXPERTS AND CONSULTANTS

When appropriate and as needed, the Parties will use neutral experts (the “Collaborative Neutral Expert”). The Parties will agree in advance of retaining the Collaborative Neutral Expert as to how the costs of that expert are to be paid. Unless the Parties otherwise agree in writing, any report prepared by the Collaborative Neutral Expert will be covered by the confidentiality provisions set out in paragraph 4 of this agreement. In the event that the collaborative law process comes to an end, the confidentiality provisions as set out in paragraph 15 of this agreement apply to the Collaborative Neutral Expert.

13. NO COURT INTERVENTION & TOLLING OF STATUTE OF LIMITATIONS

Unless otherwise agreed, prior to reaching final agreement on all issues no legal pleadings will be filed or served, nor will any other motion or document be prepared or filed which would initiate court intervention.

The Parties agree to toll the deadlines and statutes of limitations with regard to all Parties for the filing of requests for accounting, petitions for guardianship, petitions for rulings under RCW 11.94 or 11.96A, and filing of petitions under RCW 74.34. To the extent that any court determines that this contractual agreement is insufficient to toll an applicable limitations period, the Parties agree that all rights of any Party and the remedies available, shall be and are hereby incorporated into this agreement as a contractual right. If a party desires to terminate the operation of this tolling, the party must provide such notice to the other party in writing. Upon actual receipt of such notice the resumption of the tolling period with recommence on the thirtieth day after receipt.

If it is necessary to file a RCW 11.94 and RCW 11.96A petition with the court within the statute of limitations to avoid the surrender of that claim because of the rights of third Parties, the Parties agree that such a petition can be filed with the caveat that it be indicated in the petition that the Parties are currently participating in mediation under RCW 11.96A.300 and no action on the petition is requested without the consent of the other Parties. If such a petition is to be filed, the other Parties to this agreement will be given at least 15 days notice but such action shall not be considered an intervention for the purposes of this

5 agreement.

14. DISQUALIFICATION BY COURT INTERVENTION

The Parties understand that the mediator and the Parties’ collaborative lawyers’ representation is limited to providing services within the collaborative law process with regard to the relevant dispute. Thus, while each lawyer is the advisor of his or her client and serves as the client’s representative and negotiator, the Parties mutually acknowledge that both lawyers, and anyone in each lawyer’s office, will be disqualified from representing them in a contested court proceeding against the other Party in any substantively related matter. Nor may the mediator continue to serve as a mediator of the dispute without the mutual consent of all Parties.

15. WITHDRAWAL OF PARTY FROM COLLABORATIVE LAW PROCESS

If a Party decides to withdraw from the collaborative law mediation process, prompt written notice will be given to the other Party through his or her lawyer and to the mediator. Upon termination of the collaborative law mediation process by a Party or a lawyer, there will be a thirty (30) day waiting period unless there is an Emergency as defined below before any court herein, to permit the Parties to retain new lawyers and make an orderly transition. All temporary agreements will remain in full force and effect during the period. The intent of this provision is to avoid surprise and prejudice to the rights of the other Party. It is therefore, mutually agreed that either Party may bring this provision to the attention of the court to request a postponement of a hearing.

An Emergency is defined as a situation in that must be addressed in less than the 30 day period in order to protect any child or vulnerable adult as defined under RCW 74.34 from physical harm or other irreparable harm, including by not limited to the request for instructions regarding life sustaining medical treatment or a restraining order to prevent physical abuse.

If a Party wishes to replace their current lawyer, but retain a new lawyer to continue with the collaborative law process, the Party will give prompt written notice to the other Party and Mediator through his or her lawyer, of their intention to withdraw and obtain a new lawyer. The new lawyer shall execute a new collaborative law participation agreement within 30 days, otherwise the other Party will be entitled to proceed as if the collaborative law process was terminated as of the date written notice was given.

16. WITHDRAWAL OF LAWYER FROM COLLABORATIVE LAW PROCESS

If either lawyer withdraws from the case for any reason except those set out in paragraph 14 herein, they agree to do so promptly by a written notice to the other

6 Party through his or her lawyer and to the mediator. This may be done without terminating the status of the case as a collaborative law case. The Party whose lawyer has withdrawn may elect to continue in the collaborative law process and will give prompt written notice of this intention to the other Party through his or her lawyer. The new lawyer will execute a new collaborative law participation agreement within 30 days of the lawyer first giving notice. If a new agreement is not executed within 30 days, then the other Party will be entitled to proceed as if the collaborative law process was terminated as of the date the first written notice was given.

A collaborative lawyer must withdraw from the collaborative law process in the event they learn that their client has withheld or misrepresented information and continues to withhold and misrepresent such information, or otherwise acted so as to undermine or take unfair advantage of the collaborative law process and is unwilling or unable to cure the violation. The lawyer withdrawing will advise the other lawyer and the mediator that he or she is withdrawing, and that the collaborative law process must end.

17. ENFORCEABILITY OF AGREEMENTS

In the event that the Parties require a temporary agreement during the collaborative law process, the agreement will be put in writing and signed by the Parties and their lawyers. If either Party withdraws from the collaborative law process, the written agreement is enforceable and may be presented to the court as a basis for an order, which the court may make retroactive to the date of the written agreement. Similarly, once a final agreement is signed, if a Party should refuse to honor it, the final agreement may be presented to the court in any subsequent action.

18. ACKNOWLEDGEMENT

Both Parties and their lawyers acknowledge that they have read this agreement, understand its terms and conditions, and agree to abide by them. The Parties have chosen the collaborative law process to reduce emotional and financial costs, and to generate a final agreement that addresses their concerns. They agree to work in good faith to achieve these goals.

19. NOTICE ADDRESSES

Parties agree that the address listed below shall be considered the address for all notices discussed herein unless the Party informs all other parties of a change in notice address in writing at least 10 days prior to the mailing of any notice. Personal service shall also be permissible for notice.

Signatures:

______PARTY ______NOTICE ADDRESS ______Date ______ATTORNEY for Party ______Date